TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL

State of California

DANIEL E. LUNGREN

Attorney General

______________________________________

OPINION :

: No. 91-107

of :

: JULY 18, 1991

DANIEL E. LUNGREN :

Attorney General :

:

CLAYTON P. ROCHE :

Deputy Attorney General :

: ______________________________________________________________________________

THE HONORABLE EDWARD R. JAGELS, DISTRICT ATTORNEY, KERN

COUNTY, has requested an opinion on the following question:

May a county grand jury present an accusation against a municipal court judge

pursuant to Government Code section 3060?

CONCLUSION

A county grand jury may not present an accusation against a municipal court judge

pursuant to Government Code section 3060.

ANALYSIS

Section 3060 of the Government Code ("section 3060") provides:

"An accusation in writing against any officer of a district, county, or city,

including any member of the governing board or personnel commission of a school

district or any humane officer, for wilful or corrupt misconduct in office, may be

presented by the grand jury of the county for or in which the officer accused is

elected or appointed. An accusation may not be presented without the concurrence

of at least 12 grand jurors."

Ensuing sections of the Government Code (§§ 3061-3074) provide for the trial of an officer so

accused, and removal from office upon conviction.

Each county is divided into municipal court and justice court districts. A municipal

court is established in each district having more than 40,000 residents. In districts having fewer

residents, a justice court is established. (Cal. Const., art. VI, § 5.) Municipal and justice court

judges are elected by the electors of their judicial district. (Cal. Const., art. VI, § 16(b).) 
We are presented with the question whether section 3060 et seq. is applicable to a

municipal court judge to remove him or her from office for wilful or corrupt misconduct in office.

This question presents two sub-issues, that is, (1) whether a municipal court judge is a county or

district officer within the meaning of section 3060, and (2) whether section 3060 is applicable in

view of the provisions of the state Constitution which themselves provide procedures for the

removal of judges from office. These are removal by impeachment (Cal. Const., art. IV, § 18),

removal by the Supreme Court on recommendation by the Commission on Judicial Performance for

wilful misconduct in office and other improper conduct or disability (Cal. Const., art. VI, § 18), and

recall by the electors (Cal. Const., art. II, § 13).

Although provisions for impeachment and recall have been in the California

Constitution since 1879 and 1911 respectively, the provisions for removal of judges by the Supreme

Court on recommendation of the Commission on Judicial Performance are relatively new. The

commission was established by a 1960 amendment to the Constitution with the addition of Article

VI, sections 8 and 18. Section 8 established the commission and section 18 provides for its powers

and duties. As pertinent to our inquiry, Article VI, section 18 (c) provides:

"On recommendation of the Commission on Judicial Performance the

Supreme Court may. . . (2) censure or remove a judge for action . . . that constitutes

wilful misconduct in office, persistent failure or inability to perform the judge's

duties, habitual intemperance in the use of intoxicants or drugs, or conduct

prejudicial to the administration of justice that brings the judicial office into

disrepute. The Commission may privately admonish a judge found to have engaged

in an improper action or a dereliction of duty, subject to review in the Supreme Court

in the manner provided for review of causes decided by a court of appeal."

We conclude that for purposes of removal from office, a municipal court judge is a

state, not a local officer. We further conclude that the constitutional provisions for the removal of

judges are exclusive.

1. Municipal Court Judges Are State Officers

In our view it is clear from the 1966 revision of Article IV, sections 17 and 18 of the

California Constitution relating to impeachment that, for removal purposes, a municipal court judge

is a state and not a local officer. Prior to the 1966 revision, Article IV, sections 17 and 18 provided

as follows:

"Sec. 17. The Assembly shall have the sole power of impeachment, and all

impeachments shall be tried by the Senate. When sitting for that purpose, the

Senators shall be upon oath or affirmation, and no person shall be convicted without

the concurrence of two-thirds of the members elected."

"Sec. 18. The Governor, Lieutenant Governor, Secretary of State, Controller,

Treasurer, Attorney General, Chief Justice and Associate Justices of the Supreme

Court, judges of the district court of appeal, and judges of the superior courts, shall

be liable to impeachment for any misdemeanor in office; but judgment in such cases

shall extend only to removal from office and disqualification to hold any office of

honor, trust, or profit under the State; but the party convicted or acquitted shall

nevertheless be liable to indictment, trial, and punishment according to law. All

2. 91-107
other civil officers shall be tried for misdemeanor in office in such manner as the

Legislature may provide." (Emphasis added.)1

The 1966 constitutional revision combined Article VI, sections 17 and 18 into a

single provision, section 18, to read as it presently does. Subdivision (b) reads as follows:

"(b) State offices elected on a statewide basis, members of the State Board

of Equalization, and judges of state courts are subject to impeachment for

misconduct in office. Judgment may extend only to removal from office and

disqualification to hold any office under the State, but the person convicted or

acquitted remains subject to the criminal punishment according to law." (Emphasis

added.)

With respect to the amendment, the California Constitutional Revision Commission stated:

"Comment: Provisions enumerating officers subject to impeachment were

changed to include state officers elected on a statewide basis. Members of the State

Board of Equalization were specifically included because they are elected by district.

Language subjecting all judges of state courts to impeachment was inserted. This

expands the provisions of the existing section to include judges of the municipal and

justice courts.

"'Misdemeanor in office' was replaced with 'misconduct in office' inasmuch

as 'misdemeanor' literally concerns the demeanor of the officer, as distinguished from

misdemeanor used in the sense of a crime other than a felony [Reid v. Superior Court

(1919) 44 Cal.App. 349, 361, 186 P. 634].

"The words 'honor, trust, or profit' were deleted as unnecessary. 'Indictment,

trial and punishment' were replaced with 'criminal punishment,' but no change in

meaning has been effected.

 1

Interestingly, Article IV, section 18 has since 1879 provided that "all other civil officers shall

be tried for misdemeanor in office as the Legislature may provide." (Emphasis added). Section

3060 and its predecessor, Penal Code section 758, were apparently enacted to complement the

impeachment provisions and provide a means of removing "other civil officers." (See Fitch v.

Board of Supervisors (1898) 122 Cal. 285, 293-295; Reid v. Superior Court (1919) 44 Cal.App. 349,

361.).

The restriction to "other civil officers" may have been a recognition that other judicial

officers (prior to the addition of Article VI, section 18 in 1960 with respect to the Commission on

Judicial Performance), except justices of the peace, could be removed for cause by the Senate on the

recommendation of the Governor, pursuant to Article VI, section 10, of the California Constitution.

(Why justices of the peace were excepted is not clear.)

Section 10 was repealed by the 1966 constitutional revision upon recommendation of the

California Constitution Revision Commission as obsolete in view of the addition of the Commission

on Judicial Performance in 1960. (See Cal. Const. Revision Com., Proposed Revision (1966) p.

101.)

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"The final sentence of the existing section was excised as unnecessary."2

Accordingly, under the Constitution, all state judges are considered together for

purposes of removal by impeachment. No distinction is made between those serving on appellate

courts and those serving at the trial court level. We believe it follows that all state judges, including

municipal and justice court judges, are state officers for purposes of removal from office. Therefore

a municipal court judge does not fall within the purview of section 3060 as a county or district

officer. (Cf., County of Sonoma v. Worker's Comp. Appeal Board (1990) 222 Cal.App.3d 1133;

compare Villanazul v. City of Los Angeles (1951) 37 Cal.2d 718.) 

2. The Exclusivity of the Constitutional Provisions For

Removal 

We believe that absent impeachment or recall proceedings, Article VI, section 18,

providing for removal by the Supreme Court on recommendation of the Commission on Judicial

Performance, provides the sole means of removing a judge from office for misconduct. The rule of

constitutional exclusivity is set forth in State Bar of California v. Superior Court (1929) 207 Cal.

323. In that case the State Bar sought to disbar a superior court judge for practicing law while a

judge. The court, in holding the State Bar had no authority to discipline the judge, stated inter alia

at pages 337-338):

"The offense of a judge of a court of record who violates the foregoing

provision of the constitution is not an offense against his profession, but against his

office. It amounts, if proven, to such misconduct in office as would subject him to

impeachment or to such other procedure to accomplish his removal from office as

the laws provide, but it does not and should not put him in peril of proceedings which

would destroy his eligibility to practice his profession or remove him from his

membership therein, for the obvious reason that so to do would be to permit the

accomplishment by indirection of his disqualification to hold, and hence necessarily

his removal from his office for which the constitution in sections 17 and 18 of article

IV thereof has provided a direct, if not an exclusive, mode of procedure. An apt and

well-reasoned line of authority upon this precise question is that supplied by the case

of Falloon v. Clark 61 Kan. 121 [58 Pac. 990], wherein the Supreme Court of

Kansas determined that 'wherever the constitution has created an office and fixed its

term and has also declared upon what grounds and in what mode an incumbent of

such office may be removed before the expiration of his term, it is beyond the power

of the legislature to remove such officer or suspend him from office for any other

reason or in any other mode than the constitution itself has furnished.' The said court

rests its authority for this conclusion upon Lowe v. Commonwealth, 3 Met. (Ky.)

237, and Throop on Public Officers, section 341, which latter authority states the

foregoing doctrine to be well settled. . ." 

(See also People ex rel Happell v. Sischo (1943) 23 Cal.2d 478, 494-495; Daigh v. Shaffer (1937)

23 Cal.App.2d 449, 455; People v. Craig, 61 P.2d 934, decision vacated and appeal dismissed, 9

Cal.2d 615, (cited with approval in Sischo, supra.)

 2

See California Constitution Revision Commission Proposed Revision, Feb. 1966, p. 40. The

intent and purpose of the constitutional revision may be ascertained from the Constitutional Revision

Commission's recommendations. (Mosk v. Superior Court (1974) 25 Cal.3d 474, 481.)

4. 91-107
 3

Arguments presented to the voters may be used in ascertaining purpose and intent of measures

adopted by them. (Delaney v. Superior Court (1990) 50 Cal.3d 785, 801-802.)

5. 91-107

This office has also recognized and applied this rule of exclusivity on a number of

occasions. (See 41 Ops.Cal.Atty.Gen. 140, 142-143, (1963) [Legislature without authority to enact

a statute permitting the temporary suspension of a judge]; 30 Ops.Cal.Atty.Gen. 56, 59 (1957)

[legislator not subject to common law rule of forfeiture of office for accepting second incompatible

office]; 25 Ops.Cal.Atty.Gen. 167, 168 (1955) [legislator entitled to salary upon conviction of felony

until removed by Assembly despite general forfeiture statutes for such a conviction].) 

Additionally, an examination of the Ballot Pamphlet for the November 8, 1960

General Election, at which the provisions regarding the Commission on Judicial Performance were

added, discloses that article VI, section 18 was intended to provide "an alternative to existing

[removal] procedures as impeachment, recall, removal by the Legislature and removal for conviction

of a crime involving moral turpitude." (See Arguments to the Voters, Gen. Elec. (Nov. 8, 1960), p.

10, emphasis added.)3

Accordingly, we conclude that a municipal court judge is not subject to accusation

by the grand jury pursuant to section 3060 for wilful or corrupt misconduct in office.

* * * *